I do not have enough evidence to prosecute Uhuru Kenyatta, says Fatou Bensouda
What you need to know:
- Ms Bensouda said the 73 documents submitted to the ICC by the government were insufficient and did not meet the criteria for full cooperation with the court.
- She asked the court for another adjournment, the fourth in the case
International Criminal Court (ICC) Prosecutor Fatou Bensouda on Friday admitted she lacks evidence to prosecute President Uhuru Kenyatta over the 2007/2008 post-election violence.
She once again accused the Kenya government of stalling the case by refusing to provide records of what the President owns, details of his bank accounts and financial transactions around the period the violence occurred.
Ms Bensouda said the 73 documents submitted to the ICC by the government were insufficient and did not meet the criteria for full cooperation with the court.
She asked the court for another adjournment, the fourth in the case. President Kenyatta’s lawyers have until Wednesday to respond to Ms Bensouda’s submissions.
REQUEST FOR RECORDS
The case against Mr Kenyatta was to begin on October 7. In the notice filed on Friday, Ms Bensouda sought to have the start of the trial postponed until such a time the government fully complies with the request for his financial and property records.
In the four-page notice, Ms Bensouda asked the Trial Chamber to ensure the requested items are obtained from the Kenya government.
“Pursuant to the Chamber’s August 28 order, the prosecution hereby provides notice that as matters currently stand, it will not be in a position to proceed with the trial on October 7,” Ms Bensouda said.
From an evidentiary standpoint, she said, the situation is the same as when the prosecution sought an adjournment of the trial date on December 19, last year.
“The available evidence is insufficient to prove Mr Uhuru Kenyatta’s alleged criminal responsibility beyond reasonable doubt,” Ms Bensouda said, but noted that it would be inappropriate for the Prosecution to withdraw the charges against Mr Kenyatta before the Government of Kenya (GoK) complies with the revised request.
“First, doing so (withdrawing the charges) would undermine the purpose of the Chamber’s March 31 decision — to ensure that the GoK fulfils its cooperation obligations to the court,” she said.
FAILURE TO COMPLY
It would also be inappropriate to drop the charges when the failure to comply with the request for the records was Mr Kenyatta’s responsibility as the Head of State.
“In these circumstances, the Prosecution respectfully submits that the appropriate course of action is to further adjourn the case until such time as the GoK executes the Revised Request in full as required by the Chamber and in accordance with the Rome Statute.”
The ICC prosecutor had, in April, requested the Kenya government’s cooperation in obtaining the records of bank accounts held by Mr Kenyatta and his associates, foreign exchange transaction records, telephone records and M-Pesa details between June 1, 2007 and December 15, 2010.
She also requested security and intelligence information records from the National Intelligence Service relating to Mr Kenyatta’s activities around this time.
With the documents, she had hoped to flesh out evidence to enable her proceed with the trial of Mr Kenyatta.
Five months later, she stated, the government has produced a total of 73 documents, some of which are not what the prosecution requested.
To date, the government has only submitted President Kenyatta’s motor vehicle records during the period in question, his telephone numbers and bank records.
But Ms Bensouda argued that the records were just a fraction of what she had requested.
“In the circumstances, the Prosecution respectfully submits that the trial should be adjourned until the GoK executes the Prosecution’s Revised Request for records in full,” she added.
President Kenyatta and the Legal Representative of Victims are to file their responses, if any, by September 10.
